With Black Friday come huge discounts, and with huge discounts come employee distractions. Even if you’re tied to your desk all day, there is always the internet and social media to while away the hours picking up bargains. Unsurprisingly today is not a day cherished by employers, who are often forced to police employee attention, rather than get on with business as usual. it is frustrating, yet few employers know how to manage the issue, including disciplining staff for wasting valuable time – is is misconduct or capability? A warning or something more serious?
Thankfully we’ve come up with this guide for employers wanting to know their rights when it comes to monitoring the online activity and behaviour of staff. Let us know if you have any questions.
Social media has come to blur the boundaries between public and private in the workplace. Tight restriction of social media use may end up damaging employee relations. Yet misuse of social media can be a problem for many employers, creating a negative impact on an employee’s working activity and ability to carry out expectations.
Does this mean that employers can legitimately claim access to monitor their employee’s social media activity? Well, not exactly. Set out in the European Convention on Human Rights is the right for everyone to have their private life respected, including private correspondence. And yet, according to the Court of Appeal, the definition of ‘private’ is contextual, depending on the circumstances of particular cases and location, suggesting that any social media activity at work cannot be construed as entirely private. Likewise, if an employee has voluntarily befriended an employer on social media platforms, it is unrealistic to expect the employer to turn a blind eye to the employee’s posts. They have, in effect, given away their right to privacy.
The monitoring of employees, and prospective employees, is a sensitive issue that can provoke polarised opinions. Here is my advice on how employers can strike a good balance:
- Social media is a useful tool to vet new employees during the recruitment process, but be aware of the anti-discrimination legislation (i.e. an applicant viewed on a Facebook profile picture as being in a wheelchair/ pregnant should not be refused an interview on this basis as claims for discrimination can still be made by potential applicants if discrimination has taken place during an application process).
- Social media is also a useful tool to monitor existing employees and can often be a good source of evidence for an employer during investigations and disciplinary hearings (there is nothing inherently wrong with this if you are befriended by the employee on social media platforms). I once dealt with a case where an employee had called in sick claiming that he had injured his leg; however, pictures on Facebook showing the employee skiing in France brought the genuineness of the injury/absence into question!! I have also dealt with a case whereby an employee phones in sick during a hot summers day, but then proceeded to post of Facebook that he was having “fun in the sun in a paddling pool”!!
- Although, there are monitoring benefits with social media, it can sometimes be detrimental. People use social media to express views and opinions. So if an employee has had a bad day at work or disagrees with a decision that their employer has made, then they may go home and “rant” about this over social media. The employee in question may not realise that a post, tweet etc could potentially be in breach of the restrictions within their contract of employment and could also potentially bring the name of the company into disrepute, but any defamation of a company name is libelous and requires corrective action by the employer.
- Overall, social media use is a personal activity and should be treated this way by employers (unless the employee is bringing the name of the company of colleagues into disrepute). Employers should never discriminate against employee because they shared an opinion via social media that goes against their own personal beliefs or ideologies.
It is therefore imperative for employers to have a clear social media policy in place to cover the following points:-
- What social media covers giving a non-exhaustive list of examples.
- That the policy covers comments/tweets made outside of work should not; 1. bring the company into disrepute; 2. breach confidentiality or; 3. breach copyright
- That any posts should not be of a nature which would cause us to lose faith in your employee’s integrity, or any customers to lose faith in the integrity of the company.
- Do anything that could be considered discriminatory, bullying or harassment of colleagues and customers.